Timothy Cole was a 26-year-old Army veteran studying at Texas Tech University in 1986 when he was wrongly convicted of raping a 24-year-old Texas Tech student. His conviction rested on the victim’s identifying him from both photograph and in-person line-ups, but due to the nature of the line-ups, the positive ID she made of Cole was wrong. On the night of the rape, Cole had been studying at home where his brother was hosting a card game. Cole’s brother and his friends all testified to the same. Furthermore, Cole testified that he had severe asthma and did not smoke cigarettes, which the perpetrator had been doing throughout the crime. Cole was convicted and sentenced to 25 years in prison.
While in prison, Cole continued to be a brother to his siblings. His sister Karen Kennard was in law school at Texas Tech at the time. Cole wrote her a letter encouraging her to continue her studies and obtain her law degree. “I still believe in the justice system, even if the justice system doesn’t believe in me,” he wrote. Cole also used his GI Bill money to make charitable donations while he was in prison. Cole always maintained his innocence, even after he was offered parole in exchange for admitting to the rape.
In 1995, ten years after the rape occurred, and also after the statute of limitations had expired, a Texas prisoner named Jerry Wayne Johnson wrote a letter to police and the former Lubbock district attorney who prosecuted the case, Jim Bob Darnell, confessing to the rape for which Cole was convicted as well as other crimes. This letter was ignored. Cole died in prison in 1999, 13 years into his 25-year sentence. The year after Cole’s death, Johnson wrote another letter, this time to a supervising judge. The case had been transferred to a different judge, and the letter was rejected without comment.
Exoneration and Pardon
In 2007, Johnson wrote yet another letter, this time to Cole and mailed it to what he thought was Cole’s address. Johnson was unaware the Cole had died eight years prior; Johnson thought Cole had been released from prison at this point. Cole’s mother opened the letter and her son read it. Cole’s family went to the media with the letter, and The Texas Innocence Project, led b Amarillo attorney Jeff Blackburn, took on the case of clearing Cole’s name beginning with a request to do DNA testing from crime evidence against both Cole and Johnson. The DNA tests from 2008 matched Johnson. The Innocence Project of Texas sought relief in court to clear Cole’s name, but no judge in Lubbock would grant them a hearing.
In a hearing in 2009, Johnson again confessed to the rape for which Cole was convicted. A Texas judge officially exonerated Cole at an unprecedented posthumous hearing on April 7, 2009, and Texas Governor Rick Perry pardoned Cole on March 1, 2010. Cole is the first person to ever be posthumously exonerated in Texas.
Civil Rights Claims, The Timothy Cole Act, and Compensation
After Cole’s exoneration and pardon, Glasheen, Valles & Inderman was hired by Cole’s family to make a Civil Rights claim. The firm also represented about a dozen other men who had been wrongfully convicted and later exonerated by DNA evidence. Most of the cases arose out of Dallas because Dallas County had preserved the evidence from old cases. Other cities, like Houston had failed to preserve evidence from old cases, so there were no DNA samples available to test, and no way to prove somebody had been wrongfully convicted.
The firm began filing Civil Rights lawsuits in Federal Court in Dallas on behalf of its clients. The clients had the option to accept compensation from the state, but would have to waive their Civil Rights claims as a condition of the statutory compensation. At the time, the state only paid $25,000 per year of compensation, and it was taxed as income by the IRS.
The law firm began to work to change Texas law related to how the state compensates wrongly-convicted individuals. As a result of Glasheen, Valles & Inderman’s efforts, the Timothy Cole Act was passed by the Texas Legislature, which increased compensation to $160,000 for each year of incarceration—half paid as a lump sum, and half paid out over the claimant’s lifetime as an annuity. The Timothy Cole Act also provides for up to 120 hours of tuition payments to the wrongfully-convicted individual. The state has also created the Timothy Cole Advisory Panel on Wrongful Convictions in 2009 to study the prevention of wrongful convictions across the state.
Kevin Glasheen, who led the effort said “Changing the laws in order to settle a case is an unusual tactic, but it worked.” The firm’s clients settled their Civil Rights claims for the new improved statutory compensation, recovering more than seven times as much as they would have before the firm started.
The law firm then literally “when to Washington” and worked with the IRS, and with the help of Senator Cornyn and others, convinced the IRS that compensation for long term incarceration should be tax-exempt as personal injury damages, reversing years of prior law.
Scholarship and Statue
Glasheen, Valles & Inderman made a donation to the Texas Tech Law School Foundation establishing an endowment to provide for the Timothy Cole Endowed Scholarship, which is awarded to one law student each year. The law firm also funded a memorial statue in Cole’s image to be erected at the corner of 19th Street and University Avenue in Lubbock, Texas. The statue was unveiled on September 17, 2014. The words “And Justice For All” appear below Cole, who is holding a book to symbolize his education and student status at the time of his arrest. His torso faces the area where the crime occurred while his face points towards the law school, where law students are studying to become future prosecutors, defense attorneys and judges. The 13-foot-tall statue is a reminder of the great power of the criminal justice system, the fallibility of the humans that a part of it, and the great responsibility all lawyers have to always work towards just outcomes.
On March 6, 2015, the Texas Tech Board of Regents voted to award an honorary law degree to Cole. Cole was expelled from Texas Tech after his arrest in 1985. “Through no fault of his own, Timothy Cole did not realize the joyous moment of graduation and experience the rewards of earning a college degree,” Texas Tech President Duane Nellis said. “In this bittersweet moment, we are proud to posthumously bestow this much deserved honorary law degree on Timothy and hope it lends to the long and difficult healing process the Cole family has endured.” The degree was presented to Cole’s family members on May 15, 2015, at a ceremony at the Texas Tech School of Law.